IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF
VIRGINIA

Alexandria Division

UNITED STATES OF AMERICA,
Plaintiff, v. JOHN PHILLIP WALKER LINDH,
Defendant.

Crim. No. 02-51-M

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF RELEASE PENDING
TRIAL

INTRODUCTION

Pursuant to 18 U.S.C. § 3142, the defendant, John Lindh, should be
released under prescribed conditions because the government cannot meet its burden of
showing by clear and convincing evidence that he is danger to the community or by a
preponderance of evidence that he is a flight risk. As demonstrated within, each of the
factors specified in § 3142(g) - the nature and circumstances of the offense charged, the
weight of the evidence, the history and characteristics of the person, and the nature and
seriousness of any danger to the community - weighs in favor of release.

Mr. Lindh has no criminal record of any kind and absolutely no
history of violent or dangerous conduct. The affidavit presented by the government in
support of the Complaint does not even allege that Mr. Lindh has ever intended or
attempted to harm any civilian. Nor is there any evidence that Mr. Lindh is a flight risk.
Indeed, officials at the highest level of the U.S. government, including General Richard
Meyers, Chairman of the Joint Chiefs of Staff and Deputy Defense Secretary Paul Wolfowitz,
have confirmed Mr. Lindh's full cooperation since being taken into custody.

The nature of the charges against Mr. Lindh and the weight of the
evidence also support release. The government alleges only that that Mr. Lindh took part
in military training and joined Taliban military forces engaged in hostilities with the
Northern Alliance. He allegedly did so at a time when there was no United States presence
or participation in that conflict According to the allegations in the affidavit supporting
the Complaint, Mr. Lindh retreated from the region of combat as soon as U.S. planes began
to bomb the area and then surrendered to Northern Alliance troops. There is no evidence
that Mr. Lindh made any attempt to engage in combat with United States military forces,
let alone to harm any civilian. As demonstrated within, the allegations of the affidavit,
even if accepted as true, are insufficient to establish probable cause for the crimes
charged.

The weakness of the government's case is further underscored by the
nature of the evidence on which it relies. The sole factual basis for the Complaint is a
hearsay affidavit by an FBI agent relating statements allegedly made by Mr. Lindh to
another unidentified agent on December 9 and 10, 2001, while Mr. Lindh was being held at
Camp Rhino south of Kandahar in Afghanistan. The government provides no actual transcript
or tape of any such interrogation or even the actual report of the agent conducting the
interrogation. Despite requests first made on January 24 after the Rule 5 hearing and
later memorialized in writing, the government has refused to supply defense counsel with
that report or any of the alleged statements by Mr. Lindh.

Conspicuously absent from the affidavit relied on by the government
is any description of the circumstances of Mr. Lindh's captivity prior to the taking of
the alleged statements. In fact, at the time of the alleged statements, Mr. Lindh had been
held incommunicado in U.S. custody for approximately eight days. Throughout that time he
was kept under heavy armed guard and given minimal food and medical attention despite
gunshot and/or shrapnel wounds and despite malnutrition and dehydration as a result of
spending the previous seven days in the basement of the Qala-i Janghi ("QIJ")
fort while it was under repeated attack. During the two to three days immediately
preceding the alleged statements, he had been kept in a metal shipping container,
blindfolded and immobilized by hand and foot shackles and duct tape that bound his naked
body to a stretcher. Despite the severe cold of December in Afghanistan, the metal
container had no heat source, lighting or insulation, and Mr. Lindh was covered by only a
single blanket. Because of the position in which he was bound, the pain from the shackles
on his wrists and ankles and his untended wounds, and the severe cold, he had been
virtually without sleep throughout those two to three days. His repeated requests for a
lawyer had been ignored. These highly coercive conditions, together with the government's
failure to produce anything other than hearsay accounts of the statements, render the
alleged statements highly unreliable.

ARGUMENT

I. MR. LINDH IS ENTITLED TO PRETRIAL RELEASE UNLESS THE GOVERNMENT
CAN SHOW BY CLEAR AND CONVINCING EVIDENCE THAT HE IS A DANGER TO THE COMMUNITY OR BY A
PREPONDERANCE OF EVIDENCE THAT HE IS A FLIGHT RISK

The presumption in favor of pre-trial release of a person accused of
a crime is a long-established principle of our federal judicial system and a corollary of
the presumption of innocence. As the Supreme Court explained in Stack v. Boyle, 342 U.S.
1, 4 (1951) (emphasis in original):

From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the
present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally
provided that a person arrested for a non-capital offense shall be admitted to bail. This
traditional right to freedom before conviction permits the unhampered preparation of a
defense, and serves to prevent the infliction of punishment prior to conviction. See
Hudson v. Parker, 156 U.S. 277, 285 (1895). Unless [the] right to bail before trial is
preserved, the presumption of innocence, secured only after centuries of struggle, would
lose its meaning.

That presumption is preserved in the current bail statute. Pre-trial
detention is appropriate only if "the judicial officer finds that no condition or
combination of conditions will reasonably assure the appearance of the person as required
and the safety of any other person and the community." 18 U.S.C. § 3142(e). Facts
supporting a finding of danger to the community must be "supported by clear and
convincing evidence." 18 U.S.C. § 3142(f). See United States v. Clark, 865 F.2d
1433, 1435-36 (4th Cir. 1989).

The government erroneously represented to the Court at the Rule 5
hearing that the charges brought in the Complaint create a presumption that bail should
not be granted. The conditions for such a presumption are set forth in section (e) of the
bail statute, which provides in relevant part:

Subject to rebuttal by the person, it shall be presumed that no
condition or combination of conditions will reasonably assure the appearance of the person
as required and the safety of the community if the judicial officer finds that there is
probable cause to believe the person committed . . . an offense under . . . 2332b of title
18 of the United States Code.

18 U.S.C. § 3142(g) (emphasis added). The complaint charges Mr.
Lindh, however, not with violation of 2332b but 2332(b), a different statute with
different elements and different penalties. See United States v. DeBeir, 16 F. Supp. 2d
592, 594 (D. Md. 1998) ("[I]t is clear that the Act, as intended by Congress and
interpreted by the Supreme Court, allows dangerousness to justify detention only for those
individuals who fall within the carefully delineated categories set forth in §
3142(f)(1)"); United States v. Barnett, 986 F. Supp. 385, 394 (W.D. La. 1997) (no
presumption against release of defendant charged with conspiracy to commit murder for hire
because charging statute not specified in Bail Act).

The statute designated by Congress as creating a presumption, 2332b,
was first enacted in 1996 and is entitled "Acts of Terrorism Transcending National
Boundaries." It proscribes specified acts of violence directed at persons or property
"within the United States." 18 U.S.C. § 2332b(a)(1) (emphasis added). The
jurisdictional bases for that statute are set forth in 2332b(b), and penalties for
violation of that statute are set forth in 2332b(c). The completely separate statute under
which the government has charged Mr. Lindh, 2332(b), was first enacted in 1986 and
proscribes homicide, attempted homicide or conspiracy to commit homicide against a
national of the United States, while that person is "outside of the United
States." 18 U.S.C. § 2332(a) and (b). It incorporates the elements of homicide set
forth in 18 U.S.C. §§ 1111(a) and 1112(a), and sets forth its own schedule of penalties.
Id.

There can be no question, therefore, that the charging statute here,
2332(b), is not within the statutory presumption. Moreover, as demonstrated below, the
government has not even alleged facts sufficient to establish probable cause for a
violation of 2332(b). There is, therefore, no presumption against pre-trial release. To
the contrary, there is a presumption in favor of release that must be overcome by clear
and convincing evidence that no combination of conditions can reasonably assure the safety
of the community. 18 U.S.C. § 3142(f).

II. THE NATURE AND CIRCUMSTANCES OF THE OFFENSES CHARGED SUPPORT
RELEASE

Among the factors to be considered in determining whether release is
appropriate are "[t]he nature and circumstances of the offense charged, including
whether the crime is a crime of violence or involves a narcotic drug." 18 U.S.C. §
3142(g)(1). The allegations of the affidavit supporting the Complaint, even if accepted as
true, would show no tendency by Mr. Lindh to violence and would not support a finding that
he is a danger to the community.

The affidavit alleges that Mr. Lindh engaged in military training and
then joined Taliban forces that were resisting the Northern Alliance along established
battle lines in the Takhar region in northern Afghanistan. There are no allegations and no
evidence that he ever intended or attempted to harm or did harm any civilian at any time.
Indeed, the affidavit alleges that he declined to train for or engage in any activity
other than "go[ing] to the front lines to fight." (Affidavit of Anne E. Asbury
("Asbury Aff."), at 9.) Moreover, there are no allegations and no evidence that
he ever so much as fired a shot, even at Northern Alliance soldiers.

III. THE SLIM WEIGHT OF THE EVIDENCE PRESENTED BY THE GOVERNMENT
WEIGHS IN FAVOR OF RELEASE

In support of the charges alleged in the Complaint, the government
offers only the uncorroborated, double-hearsay affidavit of an FBI agent who has read the
report of another agent who allegedly interrogated Mr. Lindh on December 9 and 10. The
government offers no tape or transcript of the alleged statements, and no statement
adopted and signed by the defendant. Indeed, despite repeated requests, the government has
refused even to produce the report on which the affidavit is based. In addition, as set
forth in part III(B) below, the highly coercive environment under which the alleged
statements were made make them highly unreliable and ultimately inadmissible. Even if
accepted as true, however, the allegations of the affidavit supporting the Complaint do
not establish probable cause that the charged offenses were committed.

A. The Allegations of the Complaint Do Not Establish Probable
Cause

1. Count One

The only crime of violence alleged by the Complaint is Count One,
"engag[ing] in a conspiracy to kill nationals of the United States outside of the
United States," in violation of 18 U.S.C. § 2332(b). Prosecutions under that statute
are limited to offenses "intended to coerce, intimidate, or retaliate against a
government or a civilian population." 18 U.S.C. § 2332(d). The only U.S. nationals
identified as potential victims of the conspiracy alleged in the Complaint are
"United States nationals engaged in the ongoing conflict in Afghanistan."
(Asbury Aff., 16.)

As the affidavit indicates, however, Mr. Lindh joined Taliban forces
fighting against the Northern Alliance in the Takhar region in northern Afghanistan before
September 11, and long before the United States had any military presence in Afghanistan.
There is no basis to allege, therefore, that Mr. Lindh did so with the intention to harm
U.S. nationals. According to the affidavit supporting the Complaint, when U.S. bombing
began in the Takhar region, Mr. Lindh retreated with Taliban troops to Kunduz and then
surrendered to Northern Alliance troops under the command of General Dostum. (Asbury Aff.,
11). The affidavit alleges no facts that would support a finding that Mr. Lindh ever
intended or attempted to engage in any hostilities with United States military
forces.

The affidavit supporting the Complaint does gratuitously and without
relevance invoke in an introductory paragraph the memory of Johnny Michael Spann, the CIA
agent who was killed during the uprising at the QIJ compound where Mr. Lindh was held.
(Asbury Aff., 4). The affidavit does not allege, however, and there is no evidence that
Mr. Lindh played any part in bringing about the uprising or had any knowledge that the
uprising would occur. The Complaint alleges only that "[d]uring the course of the
uprising, Walker [sic] retreated with other detainees to a basement area of the QIJ
compound, where he remained for several days before being identified by military and
medical personnel as a United States citizen." (Asbury Aff., 4).

2. Counts Two, Three and Four

Counts Two and Three of the Complaint allege that, in violation of 18
U.S.C. § 2339B, Mr. Lindh "willfully and knowingly provide[d] material support and
resources, as that term is defined in 18 U.S.C. Section 2339A(b)" to a designated
organization The Complaint and the supporting affidavit do not specify what support or
resources Mr. Lindh is alleged to have supplied. The government presumably relies,
however, on the inclusion of the term "personnel" in the statutory definition of
"material support and services" (18 U.S.C. § 2339A(b)), on the theory that Mr.
Lindh supplied himself as personnel.

Even according to the facts alleged in the affidavit, however, the
only services ever provided by Mr. Lindh were as a foot soldier for the Taliban "in
the Takhar trenches defending against Northern Alliance attacks." (Asbury Aff., 10).
But the Taliban is not on the list of foreign terrorist organizations, and there was
nothing illegal about its efforts to resist the advances of the Northern Alliance.

The complaint, in Counts Two, Three and Four, would, in effect, seek
to hold Mr. Lindh criminally liable based solely on alleged association with designated
organizations and the Taliban. As the Supreme Court held in NAACP v. Claiborne Hardware
Co., 458 U.S. 886, 920 (1982) (emphasis added), however, "[f]or liability to be
imposed by reason of association alone, it is necessary to establish that the group itself
possessed unlawful goals and that the individual held a specific intent to further those
illegal aims." There is no evidence, and the affidavit does not allege, that Mr.
Lindh ever took part in any conduct by the named organizations other than military
training and combat against the Northern Alliance. Nor is their any evidence that he had
any intent to further any illegal aims of those organizations. Indeed, the affidavit
alleges that he specifically declined to train for or take part in any illegal conduct.
(Asbury Aff., 9). There is, therefore, no probable cause to find that Mr. Lindh violated
the statutes under which he is charged.

Moreover, the Ninth Circuit recently held that the term
"personnel" as used in section 2339A and incorporated in section 2339B is
unconstitutionally vague and, on that basis, upheld an injunction against prosecutions
based on providing personnel to a designated organization. Humanitarian Law Project v.
Reno, 205 F.3d 1130 (9th Cir. 2000); cert. denied, 121 S. Ct. 1226 (2001). On remand, the
district court, in October of last year, entered a permanent injunction. See also
Humanitarian Law Project v. Reno, No. CV 98-1971 ABD, 2001 U.S. Dist. LEXIS 16729 (C.D.
Cal. Oct. 2, 2001). For that reason alone, the charges under this statute are subject to
dismissal.

B. The Alleged Statements by Mr. Lindh, If Made at All, Were Made
Under Highly Coercive Circumstances That Render Them Unreliable and Ultimately
Inadmissible

As set forth in the attached proffer (Ex. B.), and corroborated in
part by contemporaneous press reports, the circumstances in which Mr. Lindh allegedly made
statements to an FBI agent on December 9 and 10 were highly coercive. Those statements, if
made at all, are therefore unreliable and inadmissible.

On approximately November 24, Mr. Lindh was among Taliban troops who
had surrendered to the custody of General Dostum, a Northern Alliance commander with a
reputation for extreme brutality. When other prisoners exploded grenades in an attempt to
escape, Mr. Lindh was hit by shrapnel or bullets. After some hours, other prisoners took
Mr. Lindh to the basement of the QIJ fort where he spent the next week.

During the week in the fort basement, Mr. Lindh had almost no food,
limited water and virtually no sleep. During that week, U.S. forces directed approximately
40 missile strikes at the fort. The prisoners in the basement were also subject to
repeated attacks by Northern Alliance soldiers who, in succession: 1) threw grenades down
air vents to the basement; 2) poured oil or gasoline down the vents and set the fuel on
fire; and 3) flooded the basement with freezing water. Most of the prisoners who took
refuge in the fort basement were killed.

When Mr. Lindh emerged from the basement on about December 1, he was
in a state of complete exhaustion and shock. He was taken at that time into United States
custody and held for approximately a week by special forces at a location near Mazar-e
Sharif. During that time, he was surrounded by armed guards and held in a room in which
the only window was blocked so that it was difficult to know if it was night or day. He
was provided minimal food and medical attention, though his treatment improved after he
was interrogated by unidentified intelligence agents.

As reflected in public statements of high-ranking government
officials, Mr. Lindh cooperated fully with those agents in an attempt to provide any
information that would be useful to them in pursuing perpetrators of terrorist activity.
When he asked for a lawyer, he was told he would be provided a lawyer sometime later.
Throughout this period of time, and until January 6, 2002, the Red Cross was prevented
from delivering to Mr. Lindh messages from his parents communicating their support and the
fact that they had engaged lawyers on his behalf.

On approximately December 7, Mr. Lindh was transferred by air to Camp
Rhino south of Kandahar. During the flight, he was blindfolded and bound with plastic
cuffs so tight that his hands turned blue. Soldiers transporting him threatened him with
death and torture.

Upon arrival at Camp Rhino, Mr. Lindh's clothes were cut off him, his
hands and feet were again shackled, and he was bound tightly with duct tape to a
stretcher. Still blindfolded, completely naked, he was then placed in a metal shipping
container. Press photographs of that container are attached as Ex. C.

Despite the extreme cold of Afghanistan nights in December, there was
no heat source, lighting or insulation in the container. After some time, one blanket was
placed over Mr. Lindh and another was put under the stretcher. Because of the extreme
cold, the position in which he was bound, and the pain from the tightness of his shackles
and his untreated wounds, Mr. Lindh slept little if at all during that period of
time.

These conditions remained essentially the same for the following two
to three days. At that point, still blindfolded, Mr. Lindh was taken in a state of
complete exhaustion from the shipping container to a tent. When his blindfold was removed,
he was greeted by an FBI agent who was facing him. When Mr. Lindh asked for a lawyer, he
was told that there were no lawyers there. Mr. Lindh believed that the only way to escape
the torture of his current circumstance was to do whatever the agent wanted. It as at this
point that Mr. Lindh allegedly voluntarily waived of his right to remain silent and his
right to counsel and answered questions by the FBI interrogator. After being interrogated
by the agent, the conditions of Mr. Lindh's captivity did gradually begin to improve, and
on approximately December 14, he was taken from Camp Rhino to the USS PELELIU. Only then
did he receive needed medical attention, including surgery for his wounds.

IV. MR. LINDH'S HISTORY AND CHARACTERISTICS SUPPORT PRE-TRIAL
RELEASE

Mr. Lindh has no criminal record of any kind, and no record of any
drug or alcohol abuse. Mr. Lindh's conduct while in custody also shows that he is neither
a danger to the community nor a flight risk. He has fully cooperated with all of those
holding him in custody, including providing whatever information he had that might be
helpful to U.S. intelligence agents.

Mr. Lindh has a close relationship with his family, and strong ties
to them. Should the Court determine that a condition of Mr. Lindh's release is residence
in this district, Mr. Lindh's father is prepared to relocate to this district or to an
adjoining community in order to provide a home for Mr. Lindh and to take responsibility
for him as a personal custodian.

V. MR. LINDH POSES NO DANGER TO THE COMMUNITY OR OTHER PERSONS

The final factor identified by the statute is "the nature and
seriousness of the danger to any person or the community that would be posed by the
person's release." 18 U.S.C. § 3142(g)(4). As demonstrated above, there is no basis
on which to conclude that Mr. Lindh would be a danger to any other member of the
community. The only legitimate safety concern is for Mr. Lindh himself. Mr. Lindh's family
shares the concern of pre-trial services for his safety and is prepared to take any
feasible steps that the Court deems necessary to protect John while he awaits trial. While
the details of any security plan should necessarily remain confidential, Mr. Lindh is
prepared to present a plan for the Court's approval should the Court determine that
pre-trial release is otherwise appropriate. If the Court has any concern over Mr. Lindh's
attendance at all court dates or if it would contribute in any way to his safety, that
plan could include electronic monitoring that insures that he remains in a single, secure
location.

VI. THE COURT SHOULD ALLOW FOR EXAMINATION OF SPECIAL AGENT ASBURY
AND ANY OTHER WITNESSES RELIED ON BY THE GOVERNMENT IN OPPOSING PRE-TRIAL RELEASE

The Bail Reform Act, while granting defendants the right to proceed
by proffer (18 U.S.C. § 3142(f)), does not expressly grant that right to the government.
"Nonetheless, a number of Federal Circuits - notably, not the Fourth - have held that
evidence proffers . . . by the government . . . may sometimes be adequate for a detention
order." United States v. Hammond, 44 F. Supp. 743, 745 (D. Md. 1999) (vacated and
remanded on other grounds, 229 F.3d 1144 (4th Cir. 2000)). However, "[t]he case law
certainly does not limit, and in fact supports, the discretion of the reviewing judicial
officer to require the presentation of evidence," and whether or not proffer is
sufficient "must be assessed on a case-by-case basis." Id. at 746.

In Hammond, the court determined that live testimony was necessary
because the proffered evidence was "the uncorroborated statement(s) of one or two
police officers who allegedly observed a single act committed by the defendant, and . . .
there [was] no other evidence proffered in support of the eyewitness testimony. Id. See
also United States v. Ridinger, 623 F. Supp. 1386, 1401 (W.D. Mo. 1985) ("of
paramount importance, the magistrate should . . . through the sensible exercise of his or
her discretion, insist that the government produce the testimony of live witnesses or, by
conducting an appropriate inquiry, establish the reliability of the information upon which
the government bases its claim of dangerousness").

Here, a fortiori, where there is no witness to any of the alleged
events, and the government relies solely on the uncorroborated, hearsay affidavit of an
agent recounting statements allegedly made by the defendant to another agent, the
defendant should have the opportunity to test the reliability of the allegations in the
affidavit through cross-examination. Defendant's counsel has requested that government
counsel make available at the detention hearing the agent who signed the affidavit, FBI
special agent Anne Asbury. (See Ex. A, West Decl., at 5.) The government has not, however,
made any response to that request. Id.

CONCLUSION

For all of the reasons stated above, Mr. Lindh should be granted
pre-trial release on terms and conditions that reasonably assure his appearance at trial,
his safety, and the safety of the community. The government cannot meet its burden of
showing by "clear and convincing evidence" "that no condition or
combination of conditions" will reasonably provide such safety.